Immune From Prosecution

What happens when an alleged killer receives a get-out-of-jail-free card?

Police arrested Curtis Bunton for killing Chuck McCain, but the charges were dismissed when Judge Howard Fell ruled that he was incompetent to stand trial.

Jill McCain is horrified.

Any day now, the man who allegedly shot her husband may be free to walk out on the street.

Pima County prosecutors say that unless an ongoing psychological exam shows that Curtis Bunton is a danger to himself or others, there is nothing they can do to stop him from walking free.

And given the outcome in this case, it may be impossible to prosecute Bunton for any future crimes he might commit.

Jill McCain says her nightmare began last April, when Bunton, 68, walked into a lunchroom where 61-year-old Chuck McCain was telling his employees they could go home early. Bunton shot Chuck McCain dead.

Bunton had been living at Chuck McCain's fiberglass business, Glas-Tec, for the last six or seven years. Chuck McCain had discovered Bunton, a military veteran, living on the property in a makeshift shelter made out of pallets. He let Bunton move into a trailer on the property in exchange for help with odd jobs and security work.

"I think my husband, first of all, wanted to help him, and he wanted someone guarding the equipment at night," Jill McCain says.

In 2009, Bunton had a stroke that left him disabled and suffering from aphasia, a neurological condition that rendered him nearly unable to communicate. Jill McCain says her husband helped Bunton recover from his stroke, but got into disagreements with Bunton when he tried to get Bunton to apply for Social Security benefits.

Then, on April 2, 2010, Chuck McCain told Bunton he wouldn't be able to take him to a doctor's appointment. Shortly afterward, Bunton shot McCain in front of his employees, according to court records.

After his indictment on April 15, 2010, Bunton was assigned a public defender, Leo Mazursky, who asked doctors to evaluate whether Bunton's disabled condition left him incompetent to assist in his defense.

In court hearings earlier this year, several doctors testified that Bunton was not only incompetent to stand trial, but was also unlikely to be restored to competency because of his physical disability.

So last week, Pima County Superior Court Judge Howard Fell dismissed all charges against Bunton and ordered him released from custody, although Fell recommended that prosecutors look into having Bunton undergo a mental examination under Title 36 of the Arizona Revised Statutes to determine whether he should be involuntarily committed.

Mazursky did not return a phone call from the Tucson Weekly. But David Berkman, who heads up Pima County Attorney Barbara LaWall's criminal division, calls the outcome in this case "very rare and very disturbing."

Berkman, who says the Pima County Attorney's Office is considering an appeal of Fell's decision, explains that if doctors had determined that Bunton was insane, he could have been put into a mental hospital and then restored to competency to face trial. And if he had been found guilty but insane by a jury, he would have been sent to a mental hospital; if his sanity was eventually restored, he then would have been sent to prison to serve out the rest of his sentence.

But in this case, Bunton wasn't competent to assist in his defense, so he was unfit to even stand trial. And the underlying cause of his incompetency isn't a mental issue; it's a physical disability.

"I guess you can call it a loophole," says Berkman, "but if someone is a dangerous character, and they are incompetent, and they are likely to remain incompetent, and you can't get a Title 36 to hold them in these circumstances, they're going to walk out the door, and there's not much you can do about it."

Bunton was actually on his way to freedom on Friday, April 22, when the Pima County Sheriff's Office asked for an emergency order to have Bunton undergo a psychological evaluation. Instead of being released from Pima County Jail, he was transferred to Kino Hospital, where he remained as of press time.

Jill McCain finds the entire situation "unbelievable."

"I am so outraged," she says. "So outraged."

Jill McCain remembers her husband as an entrepreneur who "could do anything."

"He was very creative," she says. "He was incredibly energetic. He was brilliant. And he— unfortunately, in my opinion—had this big heart for losers. He wanted to help people."

And in this case, it led to his death.

Jill McCain, who won a $1.5 million legal settlement in a wrongful-death lawsuit against Bunton, fears for her own safety—and that of the employees at the family business.

"He's not stupid," she says. "I'm an enemy to him at this point. I have been to almost every hearing since last April, and he sits and stares at us."

Given that Bunton is homeless and has no support system, she's scared that the first place he'll go when he gets out is to her business—the only home he's known for the last seven years.

Jill McCain says she might have to shut down the business, which her husband started in 1978.

"It's a big manufacturing plant, so do we lock our gate every day?" she asks.

Since he's already received a get-out-of-jail-free card, Jill McCain worries that there's nothing to deter him from hurting or killing someone else.

"What's to stop him from committing a bunch of crimes now—murder included?" she asks.